Exhibit 10.1
THIRD INCREASE AGREEMENT AND
WAIVER
THIRD INCREASE AGREEMENT AND WAIVER , dated as
of August 12, 2009 (this “ Agreement ”),
prepared pursuant to Section 4.1(b) of the Credit
Agreement, dated as of May 20, 2008 (as amended, supplemented,
extended or restated, or otherwise modified prior to the date
hereof including by the First Amendment to the Credit Agreement
dated as of July 18, 2008 (the “ First Amendment
”) and the Second Amendment and Increase Agreement dated as
of September 15, 2008 (the “ Second
Amendment ”), and as modified hereby, and as further
amended, supplemented or otherwise modified from time to time, the
“ Credit Agreement ”), among BUCKEYE ENERGY
SERVICES LLC, on behalf of itself and as the surviving entity of
the merger of Farm & Home Oil Company LLC (“
F&H ”) with and into Buckeye Energy Services LLC
(the “ Borrower ”), the several Lenders from
time to time parties thereto, and BNP Paribas, as Administrative
Agent (the “ Administrative Agent ”) and as
collateral agent.
RECITALS
WHEREAS, pursuant to
Section 4.1(b)(i) of the Credit Agreement, the Borrower
is requesting that the Lenders concurrently increase the
Commitments so that the Total Commitments equal $250,000,000
following the effectiveness of such increase;
WHEREAS, pursuant to
Section 4.1(b) of the Credit Agreement, Barclays Bank PLC
(the “ New Lender ”) has agreed to join the
Credit Agreement and to make Commitments under the Credit Agreement
on the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS, the Borrower is requesting
that the Lenders hereby waive compliance with the terms and
conditions of Section 4.1(b)(i), (ii) and (iii) of
the Credit Agreement solely with respect to the requirements under
each such Section for the Borrower to deliver notice of a
requested increase in Commitments;
NOW, THEREFORE, in consideration of
the premises and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
Borrower, the Administrative Agent, the Existing Lenders and the
New Lender hereby agree as follows:
1.
Defined Terms
. Unless otherwise defined
herein, terms defined in the Credit Agreement are used herein as
therein defined.
1.1
Increase Agreement and New Lender
Agreement . The New
Lender hereby agrees to make Loans to the Borrower or participate
in Letters of Credit from time to time until the Termination Date
in an aggregate principal amount at any one time outstanding not to
exceed its Commitment (as set forth in Schedule 1.0), such
agreement to be effective as of the Increase Effective Date (as
defined below) upon the receipt by the Administrative Agent from
the New Lender of the amounts required to be paid by the New Lender
pursuant to Section 4.1(b) of the Credit Agreement, which
amounts the New Lender agrees to pay on or before August 12,
2009. From and after the Increase Effective Date, the New
Lender shall be a party to the Credit Agreement and, to the extent
provided in this Agreement, have the rights and obligations of a
Lender under the Credit Agreement and under the other Loan
Documents and shall be bound by the provisions thereof.
3.
Commitments; New
Lender . Effective
upon the Increase Effective Date, the Commitments for the New
Lender shall be as set forth in Schedule 1.0 attached hereto.
Schedule 1.0 shall also set forth the Commitments for the Existing
Lenders as of the Increase Effective Date.
4.
Conditions
Precedent . This Agreement shall
become effective (the “ Increase Effective Date
”) upon the satisfaction of the following conditions
precedent:
(a)
Agreement
.
The
Administrative Agent shall have received this Agreement, executed
and delivered by a duly authorized officer of the Borrower, the New
Lender and the Required Lender.
(b)
Secretary’s
Certificates . The Administrative
Agent shall have received, with a counterpart for each Lender, a
certificate of each Loan Party, dated as of the Increase Effective
Date, substantially in the form of Exhibit E to the Credit
Agreement, with appropriate insertions and attachments,
satisfactory in form and substance to the Administrative Agent,
executed by the President or any Vice President and the Secretary
or any Assistant Secretary of such Loan Party.
(c)
Proceedings of
the Loan Parties . The Administrative
Agent shall have received a copy of the resolutions, in form and
substance satisfactory to the Administrative Agent, of the Board of
Directors (or analogous body) of each Loan Party authorizing
(i) the execution, delivery and performance of this Agreement
and the Notes delivered on the Increase Effective Date, and the
reaffirmations of the applicable Loan Documents to which it is a
party, and (ii) the reaffirmation by it of the Liens created
pursuant to the Security Documents, certified by the Secretary or
an Assistant Secretary of such Loan Party, or, if applicable, of
the general partner or managing member or members of such Loan
Party as of the Increase Effective Date, which certification shall
be in form and substance reasonably satisfactory to the
Administrative Agent and shall state that the resolutions thereby
certified have not been amended, modified, revoked or
rescinded.
(d)
Incumbency
Certificates . To the extent the
following have been amended, restated, supplemented or otherwise
modified since the Closing Date, the Administrative Agent shall
have received, with a counterpart for each Lender, a certificate of
each Loan Party, dated as of the date hereof, as to the incumbency
and signature of the officers of such Loan Party executing this
Agreement and the Notes delivered on the Increase Effective Date,
which certificate shall be included in the certificate delivered in
respect of such Loan Party pursuant to
Section 4(b) above, shall be satisfactory in form and
substance to the Administrative Agent, and shall be executed by the
President or any Vice President and the Secretary or any Assistant
Secretary of such Loan Party.
(e)
Organizational
Documents . To the extent the
following have been amended, restated, supplemented or otherwise
modified since the Closing Date, the Administrative Agent shall
have received, with a counterpart for each Lender, true and
complete copies of the Governing Documents of each Loan Party,
certified as of the date hereof as complete and correct copies
thereof by the Secretary or an Assistant Secretary of such Loan
Party, which certification shall be included in the certificate
delivered in respect of such Loan Party pursuant to
Section 4(b) above and shall be in form and substance
satisfactory to the Administrative Agent.
(f)
Good Standing
Certificates . The Administrative
Agent shall have received, with a copy for each Lender,
certificates dated as of a recent date from the Secretary of State
or other appropriate authority, evidencing the good standing of
each Loan Party (i) to the extent relevant under applicable
laws, in the jurisdiction of its organization and (ii) in each
other jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires it to qualify as a
foreign Person except, as to this subclause (ii), where the failure
to so qualify could not have a Material Adverse Effect.
2
(g)
Consents,
Licenses and Approvals . The Administrative
Agent shall have received, with a counterpart for each Lender, a
certificate of a Responsible Officer of the Borrower
|
